Called ‘sister’ and ‘Felicia,’ construction worker advances hostile work environment claim
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Friday, June 14, 2019

Called ‘sister’ and ‘Felicia,’ construction worker advances hostile work environment claim

By Kathleen Kapusta, J.D.

Daily belittling, said the court, based on perceived differences and gender stereotypes is not mere hostile or abusive language or an indelicate form of expression that must be tolerated in any work environment, even in the construction industry.

A construction worker who claimed he was called "sister" on a near daily basis, as well as "Felicia," and who also wore jewelry and skinny jeans and drove an expensive vehicle, failed to convince a federal court in Colorado that he was terminated because of gender stereotypes rather than because he allegedly threatened to shoot up the workplace. Granting summary judgment against his Title VII gender discrimination claim, the court rejected his cat’s paw argument that a biased coworker influenced the decisionmaker as the coworker was not the sole source of the alleged threats. The employee’s hostile work environment claim survived, however (Britten v. Mountain View Electric Association, Inc., June 13, 2019, Martinez, W.).

Sister. A year after he began working as an apprentice lineman, the employee rotated into the overhead construction crew where, he alleged, he was regularly called "sister" by a journeyman coworker and occasionally by the foreman. According to the foreman, the "sister" comment was used as part of a culture where "the general foreman is the dad and the foremen are the uncles and apprentices are the kids."

Another foreman, however, testified that while "sister" and "Felicia" were occasionally directed at other people, they were usually directed at the employee and "it just seemed like it was more derogatory" toward him. The employee believed the comments and conduct were demeaning and that he was being harassed due to his gender because he did not fit into the "good ol’ boys club" stereotype.

Smile and wave. While on the overhead construction crew, the employee started saying "smile and wave." When the journeyman asked another apprentice what the employee meant by that, the apprentice told him "he’s going to shoot you, Steve." According to the apprentice, the employee told him "If you ever come to work or if you’re leaving work and you see bodies dropping around you, just look up and smile and wave." He believed the employee was implying that he would be standing on the top of a building shooting people in the parking lot.

Fired. Both workers reported the comments to management, and after an investigation, which did not include interviewing the employee, the CEO terminated him.

Gender discrimination. It was undisputed the CEO terminated the employee and there were no allegations he, or anyone else with authority to fire employees, held any discriminatory animus on the basis of sex. Asserting a cat’s paw theory of liability, the employee, however, argued that the journeyman’s bias influenced the CEO’s decision. Even assuming he was biased and he fabricated or exaggerated the allegations against the employee, the journeyman was not the sole source of the report of threats of violence that led to the employee’s termination. Not only did the apprentice corroborate the story, he was the direct source for the explanation of the employee’s "smile and wave" comment and, absent the explanation he provided, the journeyman had no reason to suspect the comment was threatening.

Notably, said the court, the employee did not allege that the apprentice harbored any discriminatory animus against him and therefore the CEO relied on the statements of a nonbiased observer when he fired the employee.

And while the employee argued that the employer failed to interview him before firing him, this did not necessarily suggest pretext, the court reasoned, noting that he did not identify any written policy that required the employer to interview him prior to his termination. Finding that the harassment by, and bias of, the journeyman could not be imputed to the CEO, and did not suggest that the employer’s stated reason for the adverse action was pretextual, the court noted that while the journeyman’s report "started the ball rolling," it was not the proximate cause of the employee’s termination.

Hostile work environment claim. As to the employee’s claim the journeyman treated him differently because he did not conform to stereotypical gender norms, the court observed that he claimed the journeyman frequently referred to him as "sister" and "Felicia" over a five-month period, did not use such language in referring to other crew members, and contended that the comments were in reaction to his perceived femininity by coworkers resulting from his skinny jeans, earrings, and nice car. He also alleged that in the workplace culture, being female or having feminine characteristics were synonymous with being less than a man. Moreover, he claimed, he suffered more initiation-type pranks than others because of this perceived difference.

Stating that "belittling someone on a daily basis on the basis of perceived differences and gender stereotypes is not mere ‘hostile or abusive’ language or an ‘indelicate form of expression’ that must be tolerated in any work environment, even in the construction industry," the court found that instead, it could be evidence of severe or pervasive discriminatory conduct that creates a hostile work environment. And here, the employee presented evidence of near daily comments comparing him to a woman and alleged specific facts to support his claim he was subjected to dangerous pranks designed to humiliate him because of his perceived difference. Thus summary judgment as to this claim was denied.

Affirmative defense. And while the employer raised an affirmative defense under the Faragher-Ellerth doctrine that the employee failed to follow its harassment policy, the only fact supporting this claim was that he failed to make a complaint under the policy. It adduced no facts, however, to show his failure was unreasonable; nor did it address his justifications for not reporting under the policy. Thus the court denied the employer’s motion for summary judgment on its affirmative defense.

The case is No. 17-cv-2294-WJM-NYW.

Attorneys: Susan Penniman Klopman (H & K Law, LLC) for Steven Britten. Andrew David Ringel (Hall & Evans, LLC) for Mountain View Electric Association, Inc.

Companies: Mountain View Electric Association, Inc.

Cases: SexDiscrimination SexualHarassment Retaliation Discharge ColoradoNews

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